Bentham’s concepts of natural law and natural rights
Obstacles to Benthamism in America
Reaction to Benthamism in America
American vs. English response to the French
Index and titling added
purpose of this paper is not so much to measure the impact
of utilitarianism on American political thought as to
explain why utilitarian influence was so slight. The
question I am seeking to answer may be phrased as follows:
How did it come about that utilitarianism, the main current
in English thought for two or three generations, was little
more than a series of ripples, or at most a weak
cross-current, on this side of the Atlantic? The problem
becomes more puzzling when one reflects that the period of
the rise and growth of utilitarianism in England (the first
three or four decades of the nineteenth century) was an era
in which intellectual relations between the two countries
were especially close and one in which movements of
political and social reform ran parallel courses. Quite
reasonably, too, one might suppose that the qualities of
Bentham’s thought which contributed to its spread in England
would have insured its enthusiastic reception here. A
doctrine which contemptuously rejected tradition, preached
hardheaded, calculating practicality, conceived of the
individual as an isolated atomistic unit, and which in all
its aspects and phases appealed to the virtues and
limitations of the middle-class man of affairs - such a
doctrine, one might think, would have flourished on
nineteenth-century American soil.
to a direct attack on the problem, some definitions or
distinctions are in order. “When I mention religion,” said
Parson Thwackum, “I mean the Christian religion; and not
only the Christian religion, but the Protestant religion;
and not only the Protestant religion, but the Church of
England. “Likewise, when I mention utilitarianism, I mean
Benthamism; and not only Benthamism, but crude Benthamism;
and not only crude Benthamism,
but that part
of it which opposes to natural law and natural rights the
principle of utility or greatest happiness. To be more
explicit, in distinguishing between utilitarianism and
Benthamism, I am excluding from consideration the influence
upon American thought (which was no doubt very marked) of
such utilitarian treatises as Paley’s Moral and Political
Philosophy. Nor is it part of my purpose to analyze the
relation to American theory of that refinement or
adulteration of crude Benthamism represented by the writings
of John Stuart Mill. My discussion of Bentham’s theory of
rights will, however, necessitate some reference to John
Austin’s treatises on jurisprudence.
concepts of natural law and natural rights
Still by way of
introduction, it is necessary to touch briefly on the
development of Bentham’s concepts of natural law and natural
rights. I say “development”; but, speaking strictly, there
was only a series of restatements, covering a period of more
than half a century, of the doctrine set forth in the
Fragment on Government (1776). The character of
Bentham’s thought as a whole, to be sure, underwent
important modifications. Thus until about 1808 he was much
more interested in legal and penal reform than in political
theory; and despite his association with Lord Lansdowne and
other Whig leaders, he remained a Tory in politics. In
1808, as a result of the Panopticon fiasco and of his
association with James Mill, he turned his attention to
political questions; and within two or three years he became
a champion of parliamentary reform, universal suffrage, and
radical republican democracy.  It may be added that he
also became an admiring student of what he called the
“United States representative democracy”. But although he
thus came to accept the program, he persisted to the end in
his rejection of the principles of the exponents of natural
rights. If, as John Morley said, Burke changed his front
but never changed his ground, of Bentham it might truly be
remarked that he changed his ground but did not change his
In order to
document this remark and to provide a background for my main
thesis, I must deal, however briefly, with the complicated
and wearisome topic of Benthamite bibliography. 
1. See Elie
Halevy, The Growth of Philosophical Radicalism,
English translation by Mary Morris (New York, 1928), pp.
Halevy, op. cit., pp. 522-545 (annotated bibliography
by C. W. Everett), and Leslie Stephen, The English
Utilitarians (3 vols., London, 1900), Vol. 1, pp.
Bentham was a
constant and indefatigable writer, he published (or others
published for him) spasmodically, belatedly, and bilingually
- a fact not wholly without bearing on the nature of his
influence here and elsewhere. In the first and most
readable of his productions (published anonymously), the
famous Fragment, he grounded his criticism of
Blackstone on the utility or greatest-happiness principle,
rejected natural rights by implication, and expressly
rejected the law of nature as “an abuse of language”. 
Once its authorship was disclosed, the Fragment gave
Bentham a temporary fame in his own country, and won him
influential friends; but it seems to have been almost
entirely ignored on this side of the ocean. Certainly it
did nothing to lessen the tremendous vogue of the
Commentaries here; and I find no reference to it in
American political literature prior to 1873. “For the
philosophy of law,” wrote Oliver Wendell Holmes, Jr., in
that year, “the Fragment on Government and Austin’s
lecture are worth the whole corpus” [of Roman law!]  The
Introduction to the Principles of Morals and Legislation
(printed in 1780, but not published until 1789) made no
great splash on either side of the water. Some years after
its publication, one American Benthamite said that not four
of his countrymen had read it.  The treatise was a
systematic presentation of the doctrine of utility, and was
concluded with a long footnote (and a footnote on the
footnote!) in refutation of the American theory of natural
rights as embodied in the Declaration of Independence and
the Bills of Rights. “Who can help lamenting,” asked the
author, “that so rational a cause should be rested upon
reasons so much fitter to beget objections than to remove
The nature of
these objections he expounded in detail in the Anarchical
Fallacies, written in 1791 as a commentary on the
Declaration of the Rights of Man, but not published in
French until 1816
Fragment forms pp. 221-295 of Vol. 1 of J. Bowring
(ed.), Works of Jeremy Bentham (11 vols., Edinburgh,
American Law Review, Vol. 7 (1873), p. 579 - reprinted
in Harry C. Shriver (ed.), Justice Oliver Wendell Holmes
- His Book Notices, Uncollected Letters, and Papers (New
York, 1936), pp. 34-35. On the popularity of the
Commentaries, see Julian S. Waterman, “Thomas Jefferson and
Blackstone’s Commentaries,” Illinois Law Review, Vol.
27, pp. 629-659 (Feb., 1933). I owe this latter reference
to Professor C. B. Robson, of the University of North
said he knew not four persons in America who had read the
Principles.” Dumont to Bentham, September 4, 1811.
Works of Jeremy Bentham, Vol. 10, p. 463.
Vol. 1, p. 154.
and in English
until a quarter of a century later.  Talk about natural
rights, he exclaimed, is bawling upon paper.  Such talk
is at once illogical and mischievous: illogical, because all
rights are the creatures of government; mischievous, because
its object is “to add to those [selfish and dissocial]
passions already but too strong - to burst the bonds that
hold them in - to say to the selfish passions, there,
everywhere is your prey! - to the angry passions, there,
everywhere, is your enemy!”  “Natural rights,” so the
famous passage runs, “is simple nonsense; natural and
imprescriptible rights, nonsense upon stilts…”  “From
real laws”, Bentham adds, “come real rights; but from
imaginary laws, laws of nature, fancied and invented by
poets, rhetoricians, and dealers in moral and intellectual
poisons, come imaginary rights, a bastard brood of monsters,
gorgons and chimaeras dire”.  Again, in the Traites
de legislation (1802), in Dumont’s lucid French, he
denounced natural rights as the creatures of natural law, as
a “metaphor which derives its origin from another metaphor,”
and as “the most terrible destroyer of governments”. 
Dumont, who edited, translated, and published this
treatise, sent a copy of it to his old schoolmate in Geneva,
Albert Gallatin; and we know that it was read by several
other Americans within a few years of its publication. 
The bulk of it was not translated into English, however,
until 1840 - and then by an American, Richard Hildreth, whom
we shall shortly discuss.
Up to this
point, as we have seen, Bentham was a Tory; but after he
became the leader of the philosophical radicals he persisted
in his denunciation of natural rights. Thus in his Plan
of Parliamentary Reform (1817), while accepting the
conclusions, he attacked the premises of the Duke of
Richmond’s case for universal suffrage. “Some ipse-dixitism
in it about rights might, in point of reasoning, though not
perhaps in point of power of persuasion, have been spared”.
 Again, in a letter to Bowring, written in 1827, he
referred to the Declaration of Independence as a
“hodge-podge of confusion and absurdity” ;  and in the
Constitutional Code (1830), he dismissed bills of
rights as useful only as a check upon non-
Tactique des Assembles legislatives, suivie d’un traite des
sophismes politiques (ed. Dumont, 2 vols., Geneva,
1816); Works, Vol. 2, pp. 489-534.
Vol. 2, p. 497.
Traites de legislation (2nd ed., 3 vols., Paris, 1820),
Vol. 1, pp. 128 and 129.
discussion and references below.
Vol. 3, p. 446.
Vol. 10, p. 63.
governments, and rejected limitations on “legislative
omnicompetence” as “in contradiction to the greatest
happiness principle.”  To this dreary catalogue,
already too long, it must be added that Austin’s Province
of Jurisprudence Determined (1832), the dullest book
Lord Melbourne ever read, made as little impression here as
in England, and that his theory attracted little attention
until the publication, posthumously, in 1863, of the
Lectures on Jurisprudence. Finally, it is to be noted
that many of Bentham’s writings, including some of those
mentioned above, did not appear in English until the
publication, a decade after his death, of Bowring’s edition
of the Works. How extensively these formidable and
carelessly edited tomes were purchased and read in the
United States, I cannot say; but it may be worthy of note
that I find no review of them in an American periodical
until some twenty years after their publication - and that
it was unfavorable in the extreme. 
Benthamism in America
foregoing it is fair to infer that such of Bentham’s
writings as were known in this country by about 1860 were
not in themselves capable of arousing and sustaining
widespread interest in utilitarian doctrine. There were,
indeed, several obstacles in the way of its spread. One was
an odium theologicum; there were rumors that Bentham
was an atheist. Frequently accompanying this accusation was
the charge that some of his disciples, notably Francis
Place, were preaching infanticide.  The most serious
obstacle, however, was Bentham’s style. “We could have
wished,” wrote Thomas Cooper (an otherwise friendly critic)
in a review of the Rationale of Judicial Evidence,
“that the present editor [young John Stuart Mill] had
translated the work out of the obscure, involuted Bentham
dialect in which it is written. A book more disgustingly
affected and so nearly unintelligible it is not possible to
imagine, with the exception of some of Mr. Bentham’s former
works, which equally exhibit specimens of what may, by
courtesy to Mr. Bentham, be called English, but on no other
Vol. 9, p. 119.
Bentham and His Theory of Legislation,” National
Quarterly Review, Vol. 3, pp. 51-71 (June, 1861).
18. See John
Neal, Principles of Legislation… (Boston, 1830), p.
iv (Bentham’s theology) and p. 120 ff. (with particular
reference to Francis Place’s handbills on birth control);
and Hugh Swinton Legare, “Jeremy Bentham and the
Utilitarians”, Southern Review, Vol. 7, pp. 261-296
Review, Vol. 5, pp. 381-426 (May, 1830), at p. 381. Cf. C.
W. Everett, [Introduction,
Anti-Senatica: An Attack on the United States Senate,
sent by Jeremy Bentham to Andrew Jackson, in Smith College
Studies in History, Vol. 11, pp. 209267 (July, 1926),
at p. 220: “His [Bentham’s] later works are generally
consulted only by the determined scholar who will bear with
the form for the matter… Whether Bentham’s direct
pamphleteering had any effect on America, it is impossible
to say without research, but the Anti-Senatica gives
some indication as to why it probably did not.”]
displayed on p.860 of original.
It is therefore
clear that only authoritative and influential supporters,
able expositors and translators, could propagate Benthamism
in this country; and to account for the failure of the
doctrine to deflect the course of American thought, I want
to suggest, in the first place, that Bentham was as
unfortunate in his American as he was fortunate in his
English disciples. Halevy instances Bentham’s chance
meeting with Dumont at Bowood Castle in 1788 as “a typical
case revealing the influence on history of little causes and
individual accidents”;  and one might similarly
characterize the meeting with James Mill some two decades
later. Such “causes and accidents,” it may be repeated,
were unfavorable to the diffusion of Benthamism in America.
In evidence, let us call the roll of the American
Benthamites. It will not take long.
The first of
these was Aaron Burr. It is uncertain when Burr became and
how long he remained a Benthamite, and it is doubtful
whether he was ever a genuine believer. We do know that he
owned the Introduction; and it is recorded that in
1793 he passed on his copy of it to Albert Gallatin with the
remark “Here, this will please you - it is too dry for me !”
 In 1808, Burr met Dumont in London, assured him that
he had read the Introduction and the Usury,
and added that “in spite of his recommendation they were
little read in America, where anything requiring studious
application is neglected. Nobody but Gallatin felt all
their merit; and Gallatin was the best head in the United
On the strength
of this, Dumont urged Bentham to meet the American, adding:
“You may tell me his duel with Hamilton was a savage affair,
but he has no desire to break your head.”  Thus
announced, Burr readily ingratiated himself with Bentham,
and lived with (or sponged off) the old man for several
months. “I am going to dine with Jeremy Bentham and Colonel
Burr,” wrote a contemporary, “and am very curious to see
what sort of mixture will result from putting together pure
philosophy and Yankee
cit., p. 75.
op. cit., p. 111.
Vol. 10, p. 433.
One result was that for a time Bentham seriously
entertained the idea of emigrating to Mexico, there to serve
as lawgiver in the imperial domain of Emperor Aaron I. 
Another was that Burr made at least one convert to
Benthamism, his own daughter. To Theodosia he sent all of
Bentham’s published works and a bust of the philosopher,
 and in acknowledgment of receipt of the bulky package,
she wrote as follows: “I have read a small part of the
Traites de legislation. The work is highly original.
It is truly calculated to make readers think profoundly,
and gives a new direction to their reflections. Jeremy
Bentham has opened a new and deeper vein of political and
moral science, to bring from it the most brilliant diamonds.
Such a mind as his is not produced in many centuries. I
imagine he has reached the ne plus ultra, the border
of the Styx, and no one can go further without becoming an
inhabitant of the other world… I should take as much pride
in being his translator as the ancients did in declaring
themselves oracles of their gods.” 
intellectual and glamourous daughter maintained such a
worshipful attitude for the few remaining years of her life,
I cannot say. Burr himself, while on his Continental
travels, set down in his journal a critical comment relative
to a French treatise on natural law: “Petty and ingenious
nonsense… not naming Bentham,” he wrote.  On his return
to England in 1811, he took part in the Benthamite campaign
to spread the Lancasterian system of education.  There
is no evidence that on his return to his native land the
following year he made any attempt to diffuse utilitarian
doctrine, and it goes without saying that he was not of the
stuff of which the Mills were made.
however, other Benthamites. Mention has already been made
of Gallatin, who also planned, but never executed, a
Homer, Memoirs and Correspondence, Vol. 1, p. 464.
(letter dated October 27, 1808), quoted in Elie Halevy,
La Formation du radicalisme philosophique (3 vols.,
Paris, 1901-1904), Vol. 2, p. 364. The English translation
of this work, previously cited, does not contain the
extensive footnote references in which the passage quoted
above will be found.
Vol. 10, p. 439.
H. Wendell and Meade Minnegerode, Aaron Burr (2
vols., New York and London, 1925), Vol. 2, p. 240.
L. Davis (ed.), The Private Journal of Aaron Burr (2
vols., New York, 1838), Vol. 1, p. 114.
La formation du radicalisme philosophique, Vol. 2, p.
one of Dumont’s redactions.  Edward Livingston, the
Louisiana lawgiver, avowed himself a disciple, corresponded
with the master, and in the introduction to the famous
Louisiana penal code paid tribute to the principle of
utility; but he seems to have been unaffected by Bentham’s
political doctrine and himself made no contribution to
political theory.  Thomas Cooper became a utilitarian
of a sort as early as 1812; and in 1826, in the Elements
of Political Economy, he rejected both natural rights
and natural law. “All rights are the creatures of society;
founded on their real or supposed utility, and requiring the
force of society to protect them… There is no such thing as
law of nature or law of nations existing.”  In the
review previously referred to, he praised the substance,
even as he deplored the style, of the Rationale; and
in his 1832 “Introductory Lecture to a Course of Law” he
declared: “The polar star of morals and law is the greatest
happiness of the greatest number.”  But he did not live
to develop the doctrine or found a school, and in any case
his use of the greatest-happiness principle to vindicate
slavery would have prevented him from exerting a truly
Benthamite is one who, like Burr, was privileged to draw his
inspiration from the lips of the master himself ; one might
call him a Down-East Yankee at the court of King Jeremy. In
1824, John Neal of Portland, Maine, went to England to make
his fortune. He had already won some reputation as a
novelist and, what is to the point here, had read some of
of Jeremy Bentham, Vol. 3, p. 468.
30. For the
brief reference to the utility principle, see Complete
Works of Edward Livingston on Criminal Jurisprudence (2
vols., New York, 1873), Vol. 1, p. 189. On Livingston’s
indebtedness to Bentham, see Jesse S. Reeves, “Jeremy
Bentham and American Jurisprudence,” Report… State Bar
Association of Indiana (1906), pp. 212-237; C. W.
Everett, op. cit. (introduction to Anti-Senatica);
Paul Brosman, “Edward Livingston and Spousal Testimony in
Louisiana”, Tulane Law Review, Vol. 11, pp. 243-265
(Feb., 1937); Mitchell Franklin, “Concerning the Historic
Importance of Edward Livingston” ,ibid., pp. 163-212;
Roscoe Pound, The Formative Era of American Law
(Boston, 1938), especially pp. 16,167. The lectures
constituting Dean Pound’s book “were delivered at the law
school of Tulane University on the occasion of the
centennial of the death of Edward Livingston.”
Elements of Political Economy (Columbia, 1826), pp.
52-53. See B. F. Wright, Jr., American Interpretations
of Natural Law (Cambridge, 1931), pp. 308-310; and
Maurice Kelley, “Additional Chapters on Thomas Cooper,
University of Maine Studies, 2nd series, No. 15 (Orono,
1930), pp. 5-100, especially p. 80.
in Dumas Malone, Public Life of Thomas Cooper (New
Haven, 1926), p. 370.
Indeed he had
offered to translate one of the Dumont redactions; but the
American publisher refused, “alleging that no one knew Mr.
Bentham”.  Living in London as a free-lance contributor
to the English reviews, Neal attended one of the meetings of
the Utilitarian Club, and in that way made Bentham’s
acquaintance. For a year and a half he resided at Queen’s
Square Place with the aged Bentham, and on his return to
America announced himself as his spokesman. As such, he
published in 1830 The Principles of Legislation, a
translation of the first fourteen chapters of the Traites.
To it he prefixed a long introduction, containing a
biography and a bibliography of Bentham, together with a
statement of his own political theory. “I acknowledge,” he
proclaimed, “no rights that can interfere with the greatest
happiness of the greatest number - none whatever - not even
that of ‘life, liberty, and the pursuit of happiness’ - to
borrow the awkward and either very unmeaning or very untrue
phraseology of most of our constitutions. If it be better
for the happiness of the greatest number that a man should
die - cut him down without mercy. And so with his liberty,
and so with his property!”  That same year he wrote to
inform Bentham that he had become a father and to promise
that “my child, being born a utilitarian, shall, if I can so
manage it, become the mother of nations in the faith.” 
His own faith did not long survive the failure of his book.
The translation was awkward and inaccurate, and only four
hundred copies of it were sold. 
likewise unfortunate in his last American disciple and
translator, Richard Hildreth. His translation of the
Traites was, unlike Neal’s, a thorough and competent
job;  and in the introduction he enthusiastically
confessed the faith that was in him. “In the moral
sciences, and especially in legislation,” he wrote, “the
principle of utility is the only certain guide; and in the
estimation of an impartial posterity, Bentham will rank with
Neal, Principles of Legislation: From the Ms. of Jeremy
Bentham ... by M. Dumont, Translated from the Second
Corrected and Enlarged Edition; with Notes and a
Biographical Notice. (Boston, 1830), p. 43. On Neal,
see Milton Ellis’s account in the Dictionary of American
Biography and Irving T. Richards, Life and Works of
John Neal (unpublished thesis, Harvard University,
cit., p. 120. The italics are in the original.
to Bentham, Mar. 11, 1830, in Richards, op. cit.,
Theory of Legislation by Jeremy Bentham translated from the
French of Etienne Dumont (Boston, 1840).
genius of the first order”.  But Hildreth’s subsequent
attempts to present an American version of Benthamism,
The Theory of Morals (1844), in which he explicitly
rejected natural rights, and the Theory of Politics
(1853), in which he identified might with right, were little
noticed at the time and have since been entirely forgotten.
 “He seems to have had too little originality in ideas
or style,” Professor K. B. Murdock has written, “to win for
himself a great place in history, and his reputation is
likely to remain simply that of an active editor and writer
whose competence in historical craftsmanship saved him from
should be made, finally, to E. L. Godkin, who, as editor of
the Nation and as the author of several collections
of political essays, exerted no little influence on American
thought. “When I was at college (Queen’s at Belfast),” he
wrote, “I and the young men of my acquaintance were liberals
in the English sense. John Stuart Mill was our prophet, and
Grote and Bentham were our daily food. In fact… our
professor of political economy and jurisprudence made
Bentham his textbook”.  In 1865 (having resided in this
country nearly a decade), in a letter to Charles Eliot
Norton, he argued in the Benthamite manner against the
theory of natural rights as a justification of Negro
suffrage; but he was soon to lose his utilitarian faith.
 Some years later, in an essay on John Stuart Mill, he
characterized Bentham as devoid of imagination and sympathy,
and Mill as deficient in imagination and “animal spirits”.
Interestingly, too, he remarked that Bentham’s influence in
social theory, as distinguished from that in the realm of
legal reform, was narrowed for want of an interpreter, “none
of his followers having attempted to put his wisdom into
readable shape, except Dumont, and he only partially, and in
cit., p. iii.
Theory of Morals (Boston, 1844), pp. 183-184; Theory
of Politics (New York, 1853), p. 20. With respect to
the influence of Benthamism on Hildreth, see A. M.
Schlesinger, Jr., “The Problem of Richard Hildreth,” New
England Quarterly, Vol. 13, pp. 223-245 (June, 1940);
and on his place in American political thought, see Wright,
op. cit., p. 267.
article on Hildreth in Dictionary of American Biography.
Ogden (ed.), Life and Letters of Edwin Lawrence Godkin
(2 vols., New York, 1907), Vol. 1, p. 11.
Reflections and Comments (New York, 1895), pp. 70-71. A
good discussion of Godkin’s political theory and of its
relation to Bentham and Mill will be found in Vernon L.
Parrington’s Main Currents in American Thought, Vol.
3 (New York, 1930), pp. 154-168.
So it appears
that the American Benthamites were either epigoni or (as in
the case of the last-named) apostates. It is also worthy of
note that they worked alone. They founded no Utilitarian
Club; they established no Westminster Review.
Consequently, it is not surprising that they made but few
conversions to the faith.
Benthamism in America
To survey this
whole matter of Benthamism in America from another aspect,
we might do well to pass in brief review the reactions to
Benthamite theory on the part of more representative
thinkers, moral and political - men who were in the main
currents of American thought. To begin with a reference to
Emerson: in 1831 he wrote in his journal: “The stinking
philosophy of the utilitarian! Nihil magnificum, nihil
generosum sapit, as Cicero said of that of Epicurus”.
 Two years later, however (a year after Bentham’s
death), he wrote to his brother from London: “I have been to
see Dr. Bowring, who was very courteous. He carried me to
Bentham’s house and showed me with great veneration the
garden walk, the sitting room, and the bed chamber of the
philosopher. He also gave me a lock of his gray hair, and an
autograph… He is anxious that Bentham should be admired and
loved in America”.  Emerson contributed nothing to that
end. He rejected utilitarianism with the same contempt as
did his friend Carlyle, by whose views on this subject he
was greatly influenced. In 1836, he wrote: “I had rather
not understand in God’s world than understand thro’ and
thro’ in Bentham’s”. 
scornful view of Benthamism is reflected in the writings of
Hugh Swinton Legare. “We do not know whether the
publication of this book,” he wrote in a long review of John
Neal’s Principles, “is to be considered as any proof
of the growing popularity of Bentham and utilitarianism.
But sure we are… that it will do nothing to increase that
popularity”.  After contrasting Bentham’s principle of
utility unfavorably with that of Paley, he concluded as
follows: “But enough of utilitarianism - a philosophy
Waldo Emerson and Waldo Emerson Forbes (eds.), Journals
of Ralph Waldo Emerson (10 vols., Boston and New York,
1909-1914), Vol. 2, p. 455.
45. Ralph L.
Rusk (ed.), Letters of Ralph Waldo Emerson (6 vols.,
New York, 1939), Vol. 1, p. 392.
Vol. 1, p. 450.
Writings of Hugh Swinton Legare (2 vols., Charleston,
1845), Vol. 2, p. 449. The essay first appeared in the
Southern Review as cited above. On Legare’s importance
in the development of American thought, see Parrington,
op. cit., Vol. 2, pp. 114-124.
reverse of that so justly, as well as beautifully, described
in Milton’s Comus: 
is divine philosophy
Not harsh and
crabbed as dull fools suppose…’
course of his pilgrim’s progress, Orestes A. Brownson took
up many of the popular doctrines of his time, but he
consistently ridiculed Benthamism. In particular, he
repudiated the democracy of “the greatest good of the
greatest number, as taught by that grave and elaborate
humbug, Jeremy Bentham”.  “Hildreth,” he wrote in a
review of the Theory of Morals, “has studied
Benthamism until his own head is more confused, if possible,
than ever was Bentham’s own head”. 
one surveys the controversial writings and the systematic
political treatises of the first six or seven decades of the
nineteenth century, one finds that the leaders of thought
were untouched by or were unfriendly to Benthamism. John
Adams, Jefferson, John Taylor, Madison, Calhoun - none of
these seems to have known Bentham’s contributions to
political theory.  Nathaniel Chipman’s Principles of
Government (1833) shows some utilitarian influence, but
it is the utilitarianism, not of Bentham, but of Paley. 
Lieber makes one reference to Bentham in the Political
Ethics, and relegates him to a footnote in the Civil
Liberty.  Woolsey curtly rejects the greatest
happiness principle, and dismisses the Austinian concept of
rights as “a gloomy system”. 
Brownson’s Works (20 vols., Detroit, 1882-1887), Vol.
20, p. 354. The best biography is Arthur M. Schlesinger,
Jr., Orestes A. Brownson: A Pilgrim’s Progress
Vol. 14, p. 237.
his readings in theology nor his later acquaintance with the
critical work of Bentham seems to have shaken his confidence
[in Locke’s theory of natural rights].” Abbot E. Smith,
James Madison, Builder (New York, 1937), p. 95. For the
Bentham-Madison correspondence growing out of Bentham’s
offer to codify American law, see Works of Jeremy Bentham,
Vol. 4, pp. 453-507; G. Hunt (ed.), Writings of James
Madison (New York, 1900-1910), Vol. 8, p. 400; and
Charles Francis Adams (ed.), Memoirs of John Quincy Adams
(12 vols., Philadelphia, 1874-1877), Vol. 3, pp. 511-512.
On Jefferson’s lack of familiarity with Bentham’s writings,
see Julian S. Waterman, loc. cit., p. 648.
of Government: A Treatise on Free Institutions
(Burlington, 1833), especially pp. 85 and 96.
Political Ethics (2 vols., Boston, 1838), Vol. 1, p.
356; On Civil Liberty and Self-Government (enlarged
ed., Philadelphia, 1859), p. 195.
54. T. D.
Woolsey, Political Science (2nd ed., New York, 1889),
pp. 1-2 (happiness principle) and p. 130 (Austinianism).
In the last two
or three decades of the century, to be sure, there emerged
what Professor Dicey would call a Benthamite cross-current
in American juristic and political thought. Oliver Wendell
Holmes, Jr., was one of the first to subject Austinianism to
critical analysis; and although he did not follow the
doctrine of sovereignty all the way, he did accept, and he
continued to adhere to, the Austinian concept of rights and
of natural law.  A. Lawrence Lowell, writing in 1897,
on “The Limits of Sovereignty,” declared that “it is due to
Austin, more than anyone else, with the possible exception
of Bentham, that the idea [of natural rights] has fallen
into discredit, and has been abandoned by almost every
scholar in England and America”.  This was no doubt an
exaggeration, even in respect of the prevalence of
Austinianism among scholars; certainly it is not true that
the main current of political thought was Benthamite or
Austinian. In this connection, the analysis of W. W.
Willoughby is of interest. In his Nature of the State
(1896), he substituted utility for natural rights “as the
positive basis upon which the state rests”.  He went on
to say, however, very cogently as it seems to me, that
“resting, as we do, our origin upon a forcible separation
from England, and founding the justification for our acts
upon so-called natural or unalienable rights of liberty, we
have not been disposed to see in legal authority the sole
source of legal rights, nor to concede to its sovereignty
such a legally despotic character as logically follows from
the Austinian view”. 
English response to the French Revolution
just quoted suggests another and no doubt a more basic
reason for the failure of Benthamism to become a main
current in American thought. Halevy has acutely observed
that Bentham’s influence outside his own land was greatest
in such countries or areas as Russia, Spain, and Spanish
America, and that it was least in nations which like France
and Germany had a “philosophic tradition”.  Extending
this generalization to include the United
55. Cf. note
4 above; and see “Codes and the Arrangement of Law,”
American Law Review, Vol. 5, p. 1 (1870), reprinted in
Harvard Law Review, Vol. 44, pp. 725-737 (Mar.,
1931); “Natural Law,” in Collected Legal Papers
(London, 1920), especially pp. 313-314; and cf. the
statement by Judge Learned Hand: “Nor again do I suppose
that I am asked to discuss… his [Holmes’s] understanding of
law, so strictly Austinian …” F. Frankfurter (ed.), Mr.
Justice Holmes (New York, 1931), p. 127 - quoted in Mark
DeWolfe Howe (ed.), Holmes-Pollock Letters (2 vols.,
Cambridge, 1941), Vol. 2, p. 263, n. 2.
Essays on Government (Boston, 1897), p. 193.
cit. (New York, 1896), p. 113.
Growth of Philosophical Radicalism, p. 296.
might reasonably suppose that even if Bentham had been more
fortunate in his American interpreters, his doctrine would
have encountered an immovable obstacle in our deep-seated
Lockean tradition. A more detailed and (I hope) more
convincing analysis would run somewhat as follows: In
respect of the future of Benthamism, the decisive period in
both countries was that between the French Revolution and
(say) 1815. In England, to abridge a long story, the
reaction to the French Revolution was so strong and so
enduring that no doctrine at all tainted with Jacobinism
could win widespread acceptance. By 1815, however, there
was a demand, as Professor Carl Becker has put it, for “a
distinctively British road to democracy”; and Bentham
pointed the way”.  The teacher who could lead England
in the path of reform must not talk of the social contract,
of natural rights, or rights of man, or of liberty,
fraternity, and equality. Bentham and his disciples
precisely satisfied this requirement.” Thus Professor Dicey.
In the United
States, on the other hand, the reaction to the French
Revolution was not so extreme.  There were, to be sure,
bitter attacks on Paine and the Jacobins; but only one
“tie-wig” Federalist, Fisher Ames, repudiated the natural
law concept.  The case of John Quincy Adams is
particularly interesting. In his Letters of Publicola
(1791), he attacked Paine and the French Revolution without
himself abandoning the natural rights heritage of our own
Revolution. Years later, as American minister in London, he
became an intimate friend of Bentham and accompanied the
aged philosopher on the famous “antejentacular and
post-prandial circumgyrations”.  To the end, however,
he retained his faith in the philosophy of natural rights.
“The theory of the rights of man,” he wrote in 1835, “has
taken deep root in the soil of civil society. It has allied
itself with the feelings of humanity and the precepts of
Christian benevolence… It has linked itself with religious
doctrines and religious fervor”. 
Declaration of Independence (New York, 1922), p. 296.
Lectures on the Relation between Law and Public Opinion in
England (2nd. ed., London, 1914), p. 171.
62. See C.
D. Hazen, Contemporary American Opinion of the French
Revolution (Baltimore, 1897).
op. cit., p. 138.
64. C. F.
Adams (ed.), Memoirs of John Quincy Adams (10 vols.,
Philadelphia, 1874-1877), Vol. 3, pp.
511-512,537-555,560-565. See also the letter from Bentham
to Adams, Works of Jeremy Bentham, Vol. 10, pp.
Memoirs, Vol. 9, p. 251; quoted, Wright, op. cit.,
p. 211. Illuminating discussion of the religious basis of
the natural rights doctrine as a reason for its per‑[durance
in American thought will be found in Alice M. Baldwin’s
New England Clergy and the American Revolution (Durham,
displayed on p.869 of original.
country, then, although the natural rights concept has not
been a continuously vital and active element in our
political thought, it has always been a viable one. Indeed,
one can go further and say that here it was utilitarianism
which became discredited by the use to which it was put in
the great political debates of the nineteenth century. Thus
in the state convention debates of the twenties and
thirties, some opponents of the extension of the franchise
opposed the democratic natural rights argument with a case
grounded on utilitarian principles. P. P. Barbour, for
example, in the Virginia convention (1829-1830) argued in
this fashion: “Is it not a solecism to say that rights,
which have their very being as a consequence of government,
are to be controlled by principles applying solely to a
state of things when there was not government?”  “In
politics, as in morals,” he went on to say, “the best test
of propriety is practical utility”.  Also in the
slavery controversy, anti-slavery arguments premised on
natural rights were sometimes countered by appeals to the
principle of utility. Cooper’s utilitarian defense of
slavery has been mentioned. To take another example, James
Henry Hammond, repudiating natural law, based slavery “on
the revealed Will of God - on custom - on utility - on the
happiness of the greatest number…”  Thus, by a curious
twist in the course of thought, a doctrine which in England
was on the side of the future was here discredited by its
association with the forces of reaction.
A third reason
for the failure of Benthamism to make a strong impact on
American political thought deserves brief notice. I have
previously had occasion to point out that in his second or
radical phase Bentham became an admirer of the American
constitutional system, and I may add that his admiration was
genuine and uncritical. In his Leading Principles of a
Constitutional Code (1823), for example, he wrote: “This
[the United States] Constitution has for its general end the
greatest happiness of the greatest number”.  England,
he argued in the Constitutional Code (1830), has no con-
Virginia Convention: Proceedings and Debates (Richmond,
1830), p. 91.
William Sumner Jenkins, Pro-Slavery Thought in the Old
.South (Chapel Hill, 1935), p. 44.
Vol. 2, p. 269. A little further on (p. 274), he qualifies
his praise: “slave-purchasing and pertinaceously
slave-holding states always excepted.”
Anglo-American United States” has a constitution. “It has
for object the greatest happiness of the greatest number”.
 He wrote to President Andrew Jackson in 1830 that he
was at heart more of a United States man than an Englishman.
 The point is, of course, as Professor A. M.
Schlesinger has observed, that “many of the ideals of
political democracy for which Bentham strove were already
incorporated in the form of statutes and constitutions in
the United States,” and hence “it is not surprising that his
doctrines were chiefly influential in America in the field
of juristic science”.  The point is, too, that in the
context of such statements as those just quoted, his
criticism of our natural rights philosophy and of our bills
of rights might easily pass unnoticed.
one might, indeed, inquire whether Bentham’s
greatest-happiness or utility principle was essentially
antithetical to the natural rights concept. To most
nineteenth-century thinkers it seemed to be; but in
perspective, as Ritchie was one of the first to point out,
it appears to be merely a variant of it. When Bentham said
(he seems never to have written), “Each to count for one and
no one for more than one,” he unwittingly accepted the basic
assumption of the doctrine which he had so unremittingly
This is not to
say, however, that the failure of Benthamite doctrine to
become a main current in American thought is altogether
without significance. Dicey and more recently G. D. H. Cole
have shown quite convincingly that although Bentham’s was
originally and, in a sense, accidentally an individualist
doctrine, its essence, its inner logic, was collectivist.
The greatest-happiness principle (following Dicey) was “big
with revolution”; its implication was that legislation
should respond to the interests of the wage-earning
Vol. 9, p. 9.
Spencer Bassett (ed.), Correspondence of Andrew Jackson
(5 vols., Washington, 1926-1931), Vol. 4, p. 46. I am
unable to agree with Mr. C. W. Everett’s statement (op.
cit., pp. 209-218) that Jackson’s first message to
Congress reflects Bentham’s influence in phrasing or in
substance. Everett suggests that Bentham’s disciple and
Jackson’s secretary of state, Edward Livingston, may have
written the message; but there is in any case no evidence of
which I am aware that Livingston was acquainted with
Bentham’s political, as distinguished from his juristic,
Introduction (p. 5) to Hilda G. Lundeen, The Influence of
Jeremy Bentham on English Democratic Development
(University of Iowa Studies, Vol. 8, No. 3, no date).
73. David G.
Ritchie, Natural Rights (3d. ed., London, 1916), p.
249. See also Leslie Stephen, op. cit., Vol. 1, pp.
303-310, for a penetrating comparative analysis of
Benthamite and natural-rights individualism.
class, which in
an industrial society constitutes the “greatest number”.
Furthermore, the utilitarian theory of sovereignty provided,
in parliamentary supremacy, the instrument wherewith such
legislation might be shaped. Finally, in its effective
demand for a more efficient, more highly centralized, public
administration, Benthamism laid the foundation of the modern
service state.  To end on a speculative note, I think
it at least arguable that widespread acceptance of the
Benthamite brand of individualism in America might well have
facilitated here, as in England, rapid transition to a
op. cit., pp. 303-310. Cf. G. D. H. Cole, Some
Relations between Political and Economic Theory (London,
1934), pp. 45-46.